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Bell v. Town Board of the Town of Pawling

Appellate Division of the Supreme Court of New York, Second Department
Jan 30, 1989
146 A.D.2d 729 (N.Y. App. Div. 1989)

Opinion

January 30, 1989

Appeal from the Supreme Court, Dutchess County (Rosenblatt, J.).


Ordered that the order and judgment is affirmed, with costs.

In this proceeding, the petitioner seeks to review a judgment of the Supreme Court which resulted from a stipulation in an action entitled Schemmer v Town of Pawling. The petitioner's parcel of land abuts a parcel owned by John Schemmer, and the challenged declaratory judgment determined that a local zoning ordinance prohibiting kitchens in accessory buildings did not apply to Schemmer's property since the existence of a kitchen in an accessory building housing his farm employees was protected by Agriculture and Markets Law § 305 (2) which limits the extent to which local ordinances may interfere with farm practices.

The petitioner, who was not a party to the Schemmer action, is seeking to reverse, by collateral attack, a judgment entered by a court of coordinate jurisdiction. A proceeding pursuant to CPLR article 78 is not the proper vehicle to review such a prior judgment.

It is well settled that a collateral attack will be successful only against a judgment rendered by a court that did not have jurisdiction over the parties or the subject matter. Although fraud is a ground for a collateral attack, the fraud must be such as to deprive the court of jurisdiction (see, 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 5011.43; Marcus v Marcus, 194 Misc. 464). A challenger will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured (see, Fuhrmann v Fanroth, 254 N.Y. 479). Since the petitioner has not made such a showing, the petition was properly dismissed.

We have considered the petitioner's remaining contentions and find them to be without merit. Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.


Summaries of

Bell v. Town Board of the Town of Pawling

Appellate Division of the Supreme Court of New York, Second Department
Jan 30, 1989
146 A.D.2d 729 (N.Y. App. Div. 1989)
Case details for

Bell v. Town Board of the Town of Pawling

Case Details

Full title:CLAIRE BELL, Appellant, v. TOWN BOARD OF THE TOWN OF PAWLING et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 30, 1989

Citations

146 A.D.2d 729 (N.Y. App. Div. 1989)

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